Monthly Archives: August 2018

Welcome to the United States: Installing GPS Tracking Devices at the Border

by Bernard Bell — Friday, Aug. 31, 2018

“Like the Internet, the [Global Positioning System (“GPS”)] is an essential element of the global information infrastructure,” and “is now in everything from cell phones and wristwatches to bulldozers, shipping containers, and ATM’s.”  GPS Applications, GPS.gov.  But, as Justice Brandeis predicted in his famous Olmstead dissent, technological advances augur challenges to individual privacy.  Olmstead v. […]

“Hard Look” and “Proceduralized” Review: The Saga of the Abu Ghraib Photographs, 2009 to Present

by Bernard Bell — Monday, Aug. 27, 2018

Between October and December 2003 U.S. military personnel engaged in “sadistic, blatant, and wanton criminal abuse” of Iraqi detainees at Abu Ghraib prison.  See, Seymour M. Hersh, Torture at Abu Ghraid, THE NEW YORKER (May 10, 2004).  Photographs and videos recorded the abuse; a few were published when the abuse was first reported.   See, id.  […]

D.C. Circuit Review – Reviewed: Why I Fear the D.C. Circuit’s Approach to Clerkship Hiring is Misguided

by Aaron Nielson — Friday, Aug. 24, 2018@Aaron_L_Nielson

Here is a blog post I wish I could take back: “Five Years After the Death of the Clerkship Plan.” My post, from February of this year, concerned a (then) long-time feature of the D.C. Circuit’s homepage: The backstory is that in 2013, the D.C. Circuit officially withdrew from the “Law Clerk Hiring Plan,” which […]

The New SALT Regulations Need a Few More Sprinkles

by Andy Grewal — Friday, Aug. 24, 2018

After Congress passed the Tax Cuts and Jobs Act, several states adopted a charitable contribution strategy to help their residents avoid the new Section 164 deduction limits for state and local tax payments. Under the strategy, taxpayers would make donations to state-controlled funds and receive state tax credits for those donations. Taxpayers would then use […]

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In-House Regulators: A Theory of Ossification Inside Regulated Entities, by Kirby M. Smith

by Guest Blogger — Thursday, Aug. 23, 2018

As administrative law scholars have long noted, the structure of administrative law—and administrative agencies—has a powerful status quo bias. Ossification slows a deregulatory process, and burrowing may exacerbate deregulation’s lethargic pace. In other words, deregulating is difficult. But regulation also affects the structure of regulated firms. New regulation causes observable changes within firms. And in […]

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OIRA Sends a Smoke Signal on Independent Agencies

by Bridget C.E. Dooling — Thursday, Aug. 23, 2018@BridgetDooling

One of the most intriguing, unanswered questions about this Administration’s approach to regulatory policy is whether they’ll pull independent agencies in for some form of review by the Office of Information and Regulatory Affairs (OIRA). Although this issue has been kicked around for decades, President Trump’s appointment of Neomi Rao to the post of OIRA […]

Making a Market for Corporate Disclosure, by Kevin Haeberle & Todd Henderson

by Guest Blogger — Thursday, Aug. 23, 2018

A key concern of market-center economies like that in existence in the United States today is that public companies will under-disclose information about their prospects. Since the 1930s, the main regulatory response to this concern has come in the form of the massive mandatory-disclosure regime that sits at the foundation of modern securities law. But […]

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Citizenship and the Census: State of New York v. U.S. Department of Commerce (Round One)(Part IV)

by Bernard Bell — Wednesday, Aug. 22, 2018

This is the final post in my four-part series discussing Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 decennial census form.  The Secretary justified his decision by referencing the Department of Justice’s need for citizenship information in certain Voting Rights Act section 2 litigation.  Plaintiffs in the New York […]

The Antiquities Act’s loose limits cut both ways, by Todd Gaziano and Jonathan Wood

by Guest Blogger — Wednesday, Aug. 22, 2018

Despite being 112 years old, the Antiquities Act remains a significant source of controversy and conflict. For supporters, its expansive interpretation provides a necessary tool to protect the environment and avoid the congressional gridlock that leaves sensitive federal lands vulnerable. Opponents of the way the law is currently implemented respond that its loose wording has […]

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